There's some logic to the proposition. If, as the Heller Court said, the Second Amendment creates a personal right to self-defense with a firearm, it's not clear what in the text confines that right to the home. On the other hand, both Heller and McDonald expressly confined their holdings to the right to possess a handgun in a private home for self-defense. It's a stretch from that home-based right to a general constitutional privilege to tote guns anywhere, and one that a court of appeals judge might feel reluctant to make.
Posner, however, took the leap. A few weeks ago, I sharply criticized the methodology and tone of Posner's opinion. The opinion resolves the question of guns in the home and outside it not with serious reasoning but with this nearly hebephrenic jape: "[The Second Amendment right] is not a property right -- a right to kill a house-guest who in a fit of aesthetic fury tries to slash your copy of Norman Rockwell's painting Santa with Elves."
The issue in Moore is nobody's joke. It governs, among other things, the carrying of firearms in Chicago, the nation's third-largest city and one where the murder rate is stubbornly high. Posner could not have foreseen that the opinion would come out only a few days before the massacre of 20 children in Newtown, Connecticut. But he should have had the wit and sensitivity to treat a serious issue seriously.
The Seventh Circuit is the first court of appeals to push the Second Amendment so far; both the Second and the Fourth Circuits have shown themselves unwilling to carry gun rights farther than dictated by the Supreme Court.
After my last column, some smart people (some of whom know Posner personally) took me to task, saying that I misunderstood the intentional irony of Posner's opinion. Soon after Heller was decided in 2008, Posner criticized the Court's reasoning -- and that critique now forms part of his highly publicized intellectual quarrel with Justice Antonin Scalia over Scalia's book (written with Brian Garner) Reading Law. Posner, my correspondents suggested, was simply giving the Supremes a taste of their own medicine, demonstrating that the jejune and over-broad language of Heller and McDonald admits no limiting principle.
Posner may be having us on. If so, however, his satiric intentions do not render the opinion defensible. It is one thing for him to persecute Scalia in the pages of the New Republic or the University of Chicago Law Review; it is another thing entirely to take the dispute into the Federal Reporter, 3d Series. The words that appear in that volume are not opinion pieces but opinions; not legal scholarship but law. Moore was a 2-1 decision; Posner had the option of joining a thoughtful dissent by Judge Anne Claire Williams. Authoring the broadest possible interpretation of Heller and McDonald, Posner fed red-meat rhetoric to gun-rights lawyers and fanatics, a breed that is notably immune to irony of any kind.
